Showing posts with label Maine. Show all posts
Showing posts with label Maine. Show all posts
Monday, November 11, 2019
Update on rules revisions
Faughan on Ethics has a short update on efforts to adopt Model Rule 8.4(g) around the country and on revisions on the rules regarding advertising and solicitation.
Thursday, October 24, 2019
A quick comment on Indiana's anti-discrimination rule
A blog reader from Indiana wrote to me to tell me that Indiana adopted a version of the proposed Model Rule 8.4(g) before it was adopted by the ABA. It says that it is misconduct to “engage in conduct, in a professional capacity, manifesting, by words or conduct, bias or prejudice based upon race, gender, religion, national origin, disability, sexual orientation, age, socioeconomic status, or similar factors. Legitimate advocacy respecting the foregoing factors does not violate this subsection. A trial judge’s finding that preemptory challenges were exercised on a discriminatory basis does not alone establish a violation of this Rule.”
I was not aware of this rule in Indiana and now that I see it, I have a few comments. First, it explicitly says it regulates speech, which leads me to wonder if it would survive a constitutional attack. In contrast, the Model Rule tries (unsuccessfully, in my view, but at least it tries) to limit its reach to conduct in order to avoid regulating speech. Second, it limits the rule’s application to conduct “in a professional capacity” but it doesn’t define what it means by “professional capacity.” Third, the rule does not recognize an exception to allow lawyers to exercise discretion when choosing clients like the Model Rule does.
I was not aware of this rule in Indiana and now that I see it, I have a few comments. First, it explicitly says it regulates speech, which leads me to wonder if it would survive a constitutional attack. In contrast, the Model Rule tries (unsuccessfully, in my view, but at least it tries) to limit its reach to conduct in order to avoid regulating speech. Second, it limits the rule’s application to conduct “in a professional capacity” but it doesn’t define what it means by “professional capacity.” Third, the rule does not recognize an exception to allow lawyers to exercise discretion when choosing clients like the Model Rule does.
New Mexico becomes third state to adopt Model Rule 8.4(g)
Long time readers of this blog know that I have been following the developments on Model Rule 8.4(g) way back since it was proposed in 2016. Go here and scroll down to see my posts, in reverse chronological order.
As you probably remember, Model Rule 8.4(g) has generated a very robust debate, and has proven to be controversial because, at least as originally adopted by the ABA, some argue the rule imposes a threat of discipline for protected speech outside the practice of law based on a standard of negligence.
Since its adoption by the ABA in 2016, nine or ten jurisdictions have rejected adopting the Model Rule while only two have adopted it. The state that adopted it most recently (Maine) adopted it after making several important amendments. See here. Reportedly, Missouri, and Colorado have also amended their rules to reflect some aspect of the Model Rule, but I have not seen the extent of these amendments.
I am writing about this today because I just read a short announcement in Bloomberg Law stating that New Mexico has formally adopted Model Rule 8.4(g).
As you probably remember, Model Rule 8.4(g) has generated a very robust debate, and has proven to be controversial because, at least as originally adopted by the ABA, some argue the rule imposes a threat of discipline for protected speech outside the practice of law based on a standard of negligence.
Since its adoption by the ABA in 2016, nine or ten jurisdictions have rejected adopting the Model Rule while only two have adopted it. The state that adopted it most recently (Maine) adopted it after making several important amendments. See here. Reportedly, Missouri, and Colorado have also amended their rules to reflect some aspect of the Model Rule, but I have not seen the extent of these amendments.
I am writing about this today because I just read a short announcement in Bloomberg Law stating that New Mexico has formally adopted Model Rule 8.4(g).
Monday, June 17, 2019
Maine adopts (a different version of) ABA Model Rule 8.4(g) -- UPDATED
UPDATED (6-17-19)
In my original post on this, I stated something along the lines of "Maine adopted the Model Rule" and several readers yelled "Objection" because Maine's adopted version of the rule is different than the Model Rule.
And they are correct. Objection granted! So here is an updated post:
As you probably know, in 2016 the ABA adopted an amendment to Model Rule 8.4 to add a new section regulating conduct deemed to constitute discrimination or harassment. See MR 8.4(g).
The new rule has proved controversial, and since its adoption by the ABA, only one state (Vermont) has incorporated it into its own rules. At least four states (Arizona and Tennessee among them) have affirmatively rejected it, and one or two more (Nevada and Pennsylvania) have abandoned efforts to adopt it. (To read a little about why the rule is controversial go here, here, here, and here.)
Well, the landscape just changed a little because Maine recently adopted some aspects of the Model Rule. In a prior post I stated the Maine had adopted the Model rule, but the rule adopted in Maine differs from the ABA Model Rule, so maybe it is more accurate to say that Maine adopted an amended version of the Model Rule.
The first difference between the Model Rule and the Rule adopted in Maine is that the state’s rule omits marital status and socioeconomic status as types of discrimination. I don't know why it eliminates the reference to marital status. I assume the elimination of socioeconomic status has to deal with arguments that this category is too vague.
Second, the Maine rule actually defines the concepts of discrimination and harassment as they apply to the rule.
Third, although the Maine rule adopted the Model Rule's language of "related to the practice of law" to define when the rule applies, extending it from the more limiting "when representing a client", the adopted rule in Maine does not extend the notion of "the practice of law" as much as the Model Rule does. Unlike the Model Rule which extends the notion of "related to the practice of law" to include conduct in social activities, the new rule in Maine limits the notion of the practice of law to exactly that, ie, conduct within the practice of law. This change is in response to a common criticism of the Model Rule -- the fact that it expands the application of the rule to conduct outside the practice of law.
Finally, there is one aspect of the new rule that I find confusing. The Model Rule considers misconduct when a lawyer engages in conduct that the lawyer "should know" is discrimination or harassment. This means the standard upon which it is based is negligence. The Maine rule adopts this same language but in the definition of discrimination refers to conduct that the lawyer "reasonably should know manifests an intention" to engage in the conduct (as described in the rule). Also, in the "Guidance" section below the rule, which is not part of the rule itself, it says that "the extent of enforcement or initiation of formal disciplinary proceedings will depend on "the level of intentionality" and seriousness of the conduct. So, even though the language sounds like negligence, is the Maine rule based on intent?
You can read the text of the new rule as adopted in Maine here.
The ABA Journal has more on the story here.
In my original post on this, I stated something along the lines of "Maine adopted the Model Rule" and several readers yelled "Objection" because Maine's adopted version of the rule is different than the Model Rule.
And they are correct. Objection granted! So here is an updated post:
As you probably know, in 2016 the ABA adopted an amendment to Model Rule 8.4 to add a new section regulating conduct deemed to constitute discrimination or harassment. See MR 8.4(g).
The new rule has proved controversial, and since its adoption by the ABA, only one state (Vermont) has incorporated it into its own rules. At least four states (Arizona and Tennessee among them) have affirmatively rejected it, and one or two more (Nevada and Pennsylvania) have abandoned efforts to adopt it. (To read a little about why the rule is controversial go here, here, here, and here.)
Well, the landscape just changed a little because Maine recently adopted some aspects of the Model Rule. In a prior post I stated the Maine had adopted the Model rule, but the rule adopted in Maine differs from the ABA Model Rule, so maybe it is more accurate to say that Maine adopted an amended version of the Model Rule.
The first difference between the Model Rule and the Rule adopted in Maine is that the state’s rule omits marital status and socioeconomic status as types of discrimination. I don't know why it eliminates the reference to marital status. I assume the elimination of socioeconomic status has to deal with arguments that this category is too vague.
Second, the Maine rule actually defines the concepts of discrimination and harassment as they apply to the rule.
Third, although the Maine rule adopted the Model Rule's language of "related to the practice of law" to define when the rule applies, extending it from the more limiting "when representing a client", the adopted rule in Maine does not extend the notion of "the practice of law" as much as the Model Rule does. Unlike the Model Rule which extends the notion of "related to the practice of law" to include conduct in social activities, the new rule in Maine limits the notion of the practice of law to exactly that, ie, conduct within the practice of law. This change is in response to a common criticism of the Model Rule -- the fact that it expands the application of the rule to conduct outside the practice of law.
Finally, there is one aspect of the new rule that I find confusing. The Model Rule considers misconduct when a lawyer engages in conduct that the lawyer "should know" is discrimination or harassment. This means the standard upon which it is based is negligence. The Maine rule adopts this same language but in the definition of discrimination refers to conduct that the lawyer "reasonably should know manifests an intention" to engage in the conduct (as described in the rule). Also, in the "Guidance" section below the rule, which is not part of the rule itself, it says that "the extent of enforcement or initiation of formal disciplinary proceedings will depend on "the level of intentionality" and seriousness of the conduct. So, even though the language sounds like negligence, is the Maine rule based on intent?
You can read the text of the new rule as adopted in Maine here.
The ABA Journal has more on the story here.
Monday, April 22, 2019
Maine court expresses frustration with prosecution's cavalier attitude toward duties related to discovery and misunderstanding of duty of candor
This week, I will spend a few class hours discussing the duties of prosecutors and issues related to prosecutorial misconduct.
As I coincindence, over at the Legal Profession Blog, Mike Frisch is reporting about a recent case in Maine which illustrates some of the issues.
In this case, a defendant charged with driving on expired tags made a standard request for any dash cam video of the incident, but the prosecutor never responded nor sought to ascertain whether such video existed.
At trial, the prosecutor only used the officer involved in the case as a witness. When the officer testified that there was in fact a dash cam video, the court became interested to know why the prosecutor had not bothered to produce it, and "[t]he court’s patience was obviously tried by the State’s continued insistence that the video showing the alleged crime being committed had no “evidentiary value.”"
In its order, the lower court rebuked the State for its approach to its discovery obligations and granted the defendant's motion to suppress.
On appeal, among other things, the State argued that the court abused its discretion in selecting a sanction that effectively ended the prosecution. Yet the appeals court did not buy it. The court recognized that various obligations on prosecutors create challenges and that mistakes happen but affirmed that "[g]iven the substantial responsibility placed on the prosecutors to provide timely discovery,... it is all the more important that the obligation be treated seriously. The court here expressed its frustration with the State’s cavalier attitude toward discovery in several ways... The court further noted the State’s persistent and inexplicable failure to recognize the relevance of the video."
Also, the court explained the prosecution's confusion about its duty of candor concluding that "[i]n arguing that the video was not “exculpatory,” and therefore not discoverable, the State confuses its obligation pursuant to Rule 16(c) with its obligation pursuant to Brady v. Maryland, 373 U.S. 83 (1963):
In conclusion,
As I coincindence, over at the Legal Profession Blog, Mike Frisch is reporting about a recent case in Maine which illustrates some of the issues.
In this case, a defendant charged with driving on expired tags made a standard request for any dash cam video of the incident, but the prosecutor never responded nor sought to ascertain whether such video existed.
At trial, the prosecutor only used the officer involved in the case as a witness. When the officer testified that there was in fact a dash cam video, the court became interested to know why the prosecutor had not bothered to produce it, and "[t]he court’s patience was obviously tried by the State’s continued insistence that the video showing the alleged crime being committed had no “evidentiary value.”"
In its order, the lower court rebuked the State for its approach to its discovery obligations and granted the defendant's motion to suppress.
On appeal, among other things, the State argued that the court abused its discretion in selecting a sanction that effectively ended the prosecution. Yet the appeals court did not buy it. The court recognized that various obligations on prosecutors create challenges and that mistakes happen but affirmed that "[g]iven the substantial responsibility placed on the prosecutors to provide timely discovery,... it is all the more important that the obligation be treated seriously. The court here expressed its frustration with the State’s cavalier attitude toward discovery in several ways... The court further noted the State’s persistent and inexplicable failure to recognize the relevance of the video."
Also, the court explained the prosecution's confusion about its duty of candor concluding that "[i]n arguing that the video was not “exculpatory,” and therefore not discoverable, the State confuses its obligation pursuant to Rule 16(c) with its obligation pursuant to Brady v. Maryland, 373 U.S. 83 (1963):
The due process concepts articulated in Brady require the State to disclose to the defendant evidence that is “favorable to the accused, either because it is exculpatory, or because it is impeaching . . . .” . . . Rule 16(c), in contrast, requires the disclosure of items, including video recordings, that are “material and relevant to the preparation of the defense.” . . .
In conclusion,
What the State seems to miss in the matter before us, however, is that there is a fine line between inadvertence and practices that the court described here as “slipshod.” Carelessness in this critical area of constitutional rights is not acceptable and is not an excuse. Moreover, the State’s continued insistence that the defendant “suffered no harm” as a result of the State’s failure to turn over the video of the crime makes it painfully evident that the State still does not understand the nature of its obligations.. . . .
The State’s continued insistence that the video of the defendant driving by the trooper was not material or relevant defies common sense and provides full support for the court’s determination that a serious sanction was warranted. The suppression of the evidence, while almost certainly fatal to the State’s prosecution, fell well within the discretion of the court. [and, according to the court, the lower court "plainly used the sanction to educate the State that its casual approach to fulfilling its discovery obligation was unacceptable.The case us called State of Maine v Reed-Hansen, and you can read the opinion here.
Monday, April 8, 2019
Article on Maine's system for providing counsel to indigent criminal defendants
The Sixth Amendment Center has published a short article criticizing the system used in Maine to provide counsel to indigent defendants. According to the article, Maine is the only state in the country that provides all indigent defense services through private attorneys which makes it difficult to predict and contain costs and to supervise private attorneys to ensure they can and do provide effective representation. The article concludes that Maine struggles with both, as the Maine Commission on Indigent Legal Services is expected to oversee the representation by and cost of nearly 600 attorneys, handling more than 30,000 cases each year in 47 courthouses presided over by approximately 90 justices, judges, and magistrates, with a staff of just three people.
You can read the full article here.
You can read the full article here.
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